McCrory v. Donald

79 So. 801, 118 Miss. 596

Opinion

Per Curiam.

This is an appeal from a decree canceling appellant’s claim to certain real property and directing her to deliver possession of the property to appellee, and the canse now comes on to be heard on the motion of appellee “to require the appellant to execute a larger supersedeas appeal bond, with a penalty equal to double the value of the real estate which the decree appealed from directed the appellants to surrender to appellee, and to dismiss said appeal if said bond is not executed within the time fixed by this honorable court.”

Under section 54, Code of 1906 (section 30, Hemingway’s Code), a bond to supersede a decree for the delivery of possession of real estate must not only be in a penalty double the value of the real estate to be surrendered, and conditioned to pay all the costs and damages, but also “not to commit or suffer to be committed any waste thereon, and to pay the value of the use and occupation thereof until the delivery of possession, in case the possession is to be surrendered, if the decree appealed from' shall be affirmed.” The bond here involved contains no such condition, but seems to have been executed under and complies with section 50, Code of 1906 (section 26, Hemingway’s Code); consequently the appeal is without a supersedeas, and the motion to increase the penalty of the bond must be overruled.

Overruled.